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G.R. No.

L-68374 June 18, 1985


Luna vs. IAC
Facts:
Maria Lourdes Santos is married to Sixto Salumbides, and are the parents of Shirley
Santos Salumbides, also known as Shirley Luna Salumbides Shirley who is the
subject of this child custody case. Maria Lourdes Santos is an illegitimate child of
petitioner Horacio Luna who is married to co-petitioner Liberty Hizon-Luna.
It appears that two or four months after the birth of Shirley on April 7, 1975, her
parents gave her to the petitioners Horacio and Liberty. The couple doted upon
Shirley who called them "Mama" and "Papa". She calls her natural parents "Mommy"
and "Daddy." When Shirley reached the age of four (4) years in 1979, she was
enrolled at the Maryknoll College in Quezon City, where she is now in Grade 3.
A few months before September, 1980, her "Mama" and "Papa" decided to take
Shirley abroad. However, when the petitioners asked for the respondents' written
consent to the child's application for a U.S. visa, the respondents refused to give it.
As a result, the petitioners had to leave without Shirley whom they left with the
private respondents, upon the latter's request. The petitioners, however, left
instructions with their chauffeur to take and fetch Shirley from Maryknoll College
every school day.
When the petitioners returned on October 29, 1980, they learned that the
respondents had transferred Shirley to the St. Scholastica College. The private
respondents also refused to return Shirley to them. Neither did the said respondents
allow Shirley to visit the petitioners.
In view thereof, the petitioners filed a petition for habeas corpus with the Court of
First Instance of Rizal, Branch XV, against the private respondents to produce the
person of Shirley and deliver her to their care and custody. A decision was rendered
declaring the petitioners entitled to the child's custody and forthwith granted the
writ prayed for.
CA:
The private respondents appealed to then Court of Appeals, the appealed decision
was reversed and set aside and another entered, ordering the petitioners, among
other things, to turn over Shirley to the private respondents. The herein petitioners
filed a motion for the reconsideration of the decision but their motion was denied.

Consequently, the petitioners filed a petition for review of the decision of the
appellate court. Such was denied for lack of merit.
Upon finality of the judgment, the case was remanded to the court of origin. The
court affirmed the decision of the Court of Appeals.
The execution of the judgment was vigorously opposed by the petitioners who filed
a motion for the reconsideration of the order and to set aside the writ of execution
on the ground of supervening events and circumstances, more particularly, the
subsequent emotional, psychological, and physiological condition of the child
Shirley which make the enforcement of the judgment sought to be executed unduly
prejudicial, unjust and unfair, and cause irreparable damage to the welfare and
interests of the child.
By reason thereof, the respondent judge called a conference among the parties and
their counsels, and conducted hearings on the petitioners' motion for
reconsideration and to set aside the writ of execution. Shirley made manifest during
the hearing that she would kill herself or run away from home if she should ever be
separated from her Mama and Papa, the petitioners herein, and forced to stay with
the respondents.
Dra. Cynthia Dulay Bruce, a child psychologist, affirmed her findings that Shirley has
only grown more embittered, cautions, distrusting of her biological parents. She
claims she would be very unhappy with her biological parents since they do not
understand her needs, are selfish to her, and don't know how to care for her.
Presently, she is very difficult to encourage in seeing her biological parents in a
different light. That at the present time, to get Shirley back in this emotionally
charged transaction, would hinder Shirley seeing them as truly loving and
concerned parents. She would more deeply distrust them if they uproot her from the
home of the choice of Mr. and Mrs. Luna. The biological parents wish to do what is
also helpful to Shirley. I discussed with both parties the recommendations of
placement and follow up.
But, the respondent judge denied the petitioners' motion to set aside the writ of
execution The petitioners filed a motion for the reconsideration of the order and
when it was denied, they filed a petition for certiorari and prohibition with
preliminary injunction and restraining order with the respondent Intermediate
Appellate Court to stop altogether the execution of the decision of the Court of
Appeals. The petition was duly heard, after which a decision was rendered on May
25, 1984, dismissing the petition.
Issue:

Whether or not procedural rules more particularly the duty of lower courts to
enforce a final decision of appellate courts in child custody cases, should prevail
over and above the desire and preference of the child, to stay with her
grandparents instead of her biological parents and who had signified her intention
to kill herself or run away from home if she should be separated from her
grandparents and be forced to live with her biological parents.
Held:
No. This means that the best interest of the minor can override procedural rules and
even the rights of parents to the custody of their children.
It is a well-known doctrine that when a judgment of a higher court is returned to the
lower court, the only function of the latter court is the ministerial one of issuing the
order of execution. The lower court cannot vary the mandate of the superior court,
or examine it, for any other purpose than execution; nor review it upon any matter
decided on appeal or error apparent; nor intermeddle with it further than to settle
so much as has been demanded. However, it is also equally well-known that a
stay of execution of a final judgment may be authorized whenever it is
necessary to accomplish the ends of justice as when there had been a
change in the situation of the parties which makes such execution
inequitable; or when it appears that the controversy had never been
submitted to the judgment of the court; or when it appears that the writ
of execution has been improvidently issued; or that it is defective in
substance; or is issued against the wrong party; or that the judgement
debt has been paid or otherwise satisfied; or when the writ has been
issued without authority.
In the instant case, the petitioners claim that the child's manifestation to
the trial court that she would kill herself or run away from home if she
should be forced to live with the private respondents is a supervening
event that would justify the cancellation of the execution of the final
decision rendered by the Court of Appeals. The respondents, upon the other
hand, maintain that there are no supervening developments and circumstances
since these events are not new as the Court of Appeals had taken into account the
physiological and emotional consideration of the transfer of custody of Shirley when
it reversed the decision of the trial court and gave to the private respondents the
custody of the child Shirley; and besides, the wishes and desires of the child is no
hindrance to the parents' right to her custody since the right of the parents to the
custody of their children paramount.
We find merit in the petitioner. The manifestation of the child Shirley that she would
kill herself or run away from home if she should be taken away from the herein
petitioners and forced to live with the private respondents, made during the

hearings on the petitioners' motion to set aside the writ of execution and reiterated
in her letters to the members of the Court and during the hearing of the case before
this Court, is a circumstance that would make the execution of the
judgment rendered in Spec. Proc. No. 9417 of the Court of First Instance
of Rizal inequitable, unfair and unjust, if not illegal. Article 363 of the Civil
Code provides that in all questions relating to the care, custody, education
and property of the children, the latter's welfare is paramount.
Since, in this case, the very life and existence of the minor is at stake and the child
is in an age when she can exercise an intelligent choice, the courts can do no
less than respect, enforce and give meaning and substance to that choice
and uphold her right to live in an atmosphere conducive to her physical,
moral and intellectual development. The threat may be proven empty, but
Shirley has a right to a wholesome family life that will provide her with
love, care and understanding, guidance and counseling. and moral and
material security. But what if the threat is for real?
Besides, in her letters to the members of the Court, Shirley depicted her biological
parents as selfish and cruel and who beat her often; and that they do not love her.
And, as pointed out by the child psychologist, Shirley has grown more embitered
cautious and dismissing of her biological parents. To return her to the custody of the
private respondents to face the same emotional environment which she is now
complaining of would be indeed traumatic and cause irreparable damage to the
child. As requested by her, let us not destroy her future.

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-68374 June 18, 1985

HORACIO
LUNA
and
LIBERTY
HIZON-LUNA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, HON ROQUE A. TAMAYO, as Presiding Judge of
Regional Trial Court, NCR Branch CXXXI1 Makati, Metro Manila, MARIA LOURDES
SANTOS, and SIXTO SALUMBIDES,respondents.

CONCEPCION, JR., J.:


Review on certiorari of the decision of the respondent appellate court in case CA-G. R. No.
SP-01869, entitled: "Horacio Luna, et al., petitioners, versus Hon. Roque A. Tamayo, etc.,
et al., respondents, " which affirmed an order denying a motion to restrain the execution of a
final judgment rendered in a habeas corpus case.
The records of the case show that the herein private respondent Maria Lourdes Santos is
an illegitimate child of the petitioner Horacio Luna who is married to his co-petitioner Liberty
Hizon-Luna. Maria Lourdes Santos is married to her correspondent Sixto Salumbides, and
are the parents of Shirley Santos Salumbides, also known as Shirley Luna Salumbides, who
is the subject of this child custody case.
It appears that two or four months after the birth of the said Shirley Salumbides on April 7,
1975, her parents gave her to the petitioners, a childless couple with considerable means,
who thereafter showered her with love and affection and brought her up as their very own.
The couple doted upon Shirley who called them "Mama" and "Papa". She calls her natural
parents "Mommy" and "Daddy." When Shirley reached the age of four (4) years in 1979, she
was enrolled at the Maryknoll College in Quezon City, where she is now in Grade I I I.
A few months before September, 1980, her "Mama" and "Papa" decided to take Shirley
abroad and show her Disneyland and other places of interest in America. Shirley looked
forward to this trip and was excited about it. However, when the petitioners asked for the
respondents' written consent to the child's application for a U.S. visa, the respondents
refused to give it, to the petitioners' surprise and chagrin Shirley was utterly disappointed.
As a result, the petitioners had to leave without Shirley whom they left with the private
respondents, upon the latter's request. The petitioners, however, left instructions with their
chauffeur to take and fetch Shirley from Maryknoll College every school day.
When the petitioners returned on October 29, 1980, they learned that the respondents had
transferred Shirley to the St. Scholastica College. The private respondents also refused to
return Shirley to them. Neither did the said respondents allow Shirley to visit the petitioners.
In view thereof, the petitioners filed a petition for habeas corpus with the Court of First
Instance of Rizal, Branch XV, against the private respondents to produce the person of
Shirley and deliver her to their care and custody. The case was docketed in court as Spec.

Proc. No. 9417, and after the filing of an answer and due hearing, a decision was rendered
on March 9, 1981, declaring the petitioners entitled to the child's custody and forthwith
granted the writ prayed for.
The private respondents appealed to the then Court of Appeals where the case was
docketed as CA-G.R. No. SP-12212, and in a decision dated April 7, 1982, the appealed
decision was reversed and set aside and another entered, ordering the petitioners, among
other things, to turn over Shirley to the private respondents. The herein petitioners filed a
motion for the reconsideration of the decision but their motion was denied.
Consequently, the petitioners filed a petition for review of the decision of the appellate court.
The case was docketed herein as G.R. No. 60860 and on November 10, 1982, this Court, in
a minute resolution, denied the petition for lack of merit.
Upon finality of the judgment, the case was remanded to the court of origin and assigned to
Regional Trial Court, NCJR Branch CXXXII Makati, Metro Manila, presided over by
respondent Judge Roque A. Tamayo who, thereafter, issued an order directing the issuance
of a writ of execution to satisfy and enforce the resolution of the Supreme Court which
affirmed the decision of the Court of Appeals.
The execution of the judgment was vigorously opposed by the petitioners who filed a motion
for the reconsideration of the order and to set aside the writ of execution on the ground of
supervening events and circumstances, more particularly, the subsequent emotional,
psychological, and physiological condition of the child Shirley which make the enforcement
of the judgment sought to be executed unduly prejudicial, unjust and unfair, and cause
irreparable damage to the welfare and interests of the child. By reason thereof, the
respondent judge called a conference among the parties and their counsels, and conducted
hearings on the petitioners' motion for reconsideration and to set aside the writ of execution.
Shirley made manifest during the hearing that she would kill herself or run away from home
if she should ever be separated from her Mama and Papa, the petitioners herein, and
forced to stay with the respondents. A portion of her testimony is quoted hereunder:
ATTY. CASTRO:
xxx xxx xxx
Q Would you want to have with your daddy and mommy,
referring to Sixto Salumbides and Maria Lourdes Salumbides
A No, sir.
Q Why not?

A Because they are cruel to me. They always spank me and


they do not love me. Whenever I am eating, they are not
attending to me. It is up to me whether I like the food or not.
xxx xxx xxx
Q Now, if you will be taken from your papa and mama (Luna
spouses) and given to your daddy and mommy (Salumbides
spouses), what would you do if you will do anything?
A I will either kill myself or I will escape. Even now they said
they love me. I don't believe them. I know they are not sincere.
They are only saying that to me. And I know those words were
not coming from their hearts. If they will get me from my papa
and mama, they will be hurt because they know that my papa
and mama love me very much. 1
Dra. Cynthia Dulay Bruce, a child psychologist, affirmed her findings that
... She (Shirley) has only grown more embittered, cautions, distrusting of her
biological parents. She threatens to kill herself or run away if given to her
biological parents. She claims she would be very unhappy with her biological
parents since they do not understand her needs are selfish to her, and don't
know how to care for her. Presently, she is very difficult to encourage in
seeing her biological parents in a different light. 2
and that
... I reviewed with them (Salumbides spouse) that at the present time, to get
Shirley back in this emotionally charged transaction, would hinder Shirley
seeing them as truly loving and concerned parents. She would more deeply
distrust them if they uproot her from the home of the choice of Mr. and Mrs.
Luna. The biological parents wish to do what is also helpful to Shirley. I
discussed with both parties the recommendations of placement and follow
up. 3
But, the respondent judge denied the petitioners' motion to set aside the writ of execution
The petitioners filed a motion for the reconsideration of the order and when it was denied,
they filed a petition for certiorari and prohibition with preliminary injunction and restraining
order with the respondent Intermediate Appellate Court, which was docketed therein as CAG.R. No. SP-01869, to stop altogether the execution of the decision of the Court of Appeals
rendered in CA-G.R. No. SP-12212. The petition was duly heard, after which a decision was
rendered on May 25, 1984, dismissing the petition, Hence, the present recourse.

The issue is whether or not procedural rules more particularly the duty of lower courts to
enforce a final decision of appellate courts in child custody cases, should prevail over and
above the desire and preference of the child, to stay with her grandparents instead of her
biological parents and who had signified her intention Up kill herself or run away from home
if she should be separated from her grandparents and forced to live with her biological
parents.
It is a well-known doctrine that when a judgment of a higher court is returned to the lower
court, the only function of the latter court is the ministerial one of issuing the order of
execution. The lower court cannot vary the mandate of the superior court, or examine it, for
any other purpose than execution; nor review it upon any matter decided on appeal or error
apparent; nor intermeddle with it further than to settle so much as has been demanded.
However, it is also equally well-known that a stay of execution of a final judgment may be
authorized whenever it is necessary to accomplish the ends of justice as when there had
been a change in the situation of the parties which makes such execution inequitable; or
when it appears that the controversy had never been submitted to the judgment of the court;
or when it appears that the writ of execution has been improvidently issued; or that it is
defective in substance; or is issued against the wrong party; or that the judgement debt has
been paid or otherwise satisfied; or when the writ has been issued without authority.
In the instant case, the petitioners claim that the child's manifestation to the trial court that
she would kill herself or run away from home if she should be forced to live with the private
respondents is a supervening event that would justify the cancellation of the execution of
the final decision rendered by the Court of Appeals in CA-G.R. No. SP-12212. The
respondents, upon the other hand, maintain that there are no supervening developments
and circumstances since these events are not new as the Court of Appeals had taken into
account the physiological and emotional consideration of the transfer of custody of Shirley
when it reversed the decision of the trial court and gave to the private respondents the
custody of the child Shirley; and besides, the wishes and desires of the child is no
hindrance to the parents' right to her custody since the right of the parents to the custody of
their children paramount.
We find merit in the petitioner. The manifestation of the child Shirley that she would kill
herself or run away from home if she should be taken away from the herein petitioners and
forced to live with the private respondents, made during the hearings on the petitioners'
motion to set aside the writ of execution and reiterated in her letters to the members of the
Court dated September 19, 1984 4 and January 2, 1985, 5 and during the hearing of

the case before this Court, is a circumstance that would make the execution of
the judgment rendered in Spec. Proc. No. 9417 of the Court of First Instance
of Rizal inequitable, unfair and unjust, if not illegal. Article 363 of the Civil
Code provides that in all questions relating to the care, custody, education and
property of the children, the latter's welfare is paramount. This means that the

best interest of the minor can override procedural rules and even the rights of
parents to the custody of their children. Since, in this case, the very life and
existence of the minor is at stake and the child is in an age when she can
exercise an intelligent choice, the courts can do no less than respect, enforce
and give meaning and substance to that choice and uphold her right to live in
an atmosphere conducive to her physical, moral and intellectual
development. 6 The threat may be proven empty, but Shirley has a right to a
wholesome family life that will provide her with love, care and understanding,
guidance and counseling. and moral and material security. 7 But what if the
threat is for real.?
Besides, in her letters to the members of the Court, Shirley depicted her biological parents
as selfish and cruel and who beat her often; and that they do not love her. And, as pointed
out by the child psychologist, Shirley has grown more embitered cautious and dismissing of
her biological parents. To return her to the custody of the private respondents to face the
same emotional environment which she is now complaining of would be indeed traumatic
and cause irreparable damage to the child. As requested by her, let us not destroy her
future.
WHEREFORE, the petition should be, as it is hereby GRANTED and the writ prayed for
issued, setting aside the judgment of the respondent Intermediate Appellate Court in CAG.R. No. SP-01869, and restraining the respondent judge and/or his successors from
enforcing the judgment rendered by the Court of Appeals in CA-G.R. No. SP-12212.
entitled: "Horacio Luna and Liberty Hizon-Luna, petitioners-appellees, versus Maria Lourdes
Santos and Sixto Salumbides, respondents-appellants." The decision rendered in Spec.
Proc. No. 9417 of the Court of First Instance of Rizal granting the herein petitioners custody
of the child Shirley Salumbides should be maintained. Without costs. SO ORDERED.
Abad Santos, Escolin and Cuevas, JJ., concur.

Separate Opinions

AQUINO, J., concurring:

A judgment for the custody of the child, like a judgment for support is not final and
irrevocable. The welfare of the child is the paramount consideration. It would be for Shirley's
welfare to remain in the custody of the petitioners.

MAKASIAR, J., dissenting:


The resolution of the issue on who should have custody over the nine-year old girl has been
viewed from a limited approach. The majority opinion has been focused more on the
personal assessment of the child rather than on the general and specific laws and
jurisprudence that should govern this case. A nine-year old child, brainwashed by the
material luxury as well as constant attention showered on her by doting grandparents,
cannot possibly appreciate the incomparable love and solicitude her natural parents have
for her always, in good or bad times.
The determination, therefore, as to whose custody the child belongs must necessarily and
initially involve the question of parental authority. it appears that the law on parental
authority has been conveniently side tracked by petitioners.
Parental authority, known in Roman law as patria potestas, is defined as "the mass of rights
and obligations which parents have in relation to the person and property of their children
until their majority age or emancipation, and even after this under certain circumstances" (2
Manresa 8, cited in p. 657, Comments & Jurisprudence on the Civil Code, Tolentino, Vol. 1,
1983 ed.).
The following Civil Code provisions thus provide:
Art. 311. The father and mother jointly exercise parental authority over their
legitimate children. who are not emancipated, In case of disagreement, the
father's decision shall prevail, unless there
xxx xxx xxx
Art, 313. Parental authority cannot be renounced or transfer- red, except in
cases of guardianship or adoption approved by 'the courts, or emancipation
by concession (par. 1).
Significantly, the stern pronouncements of this Court in the case of Celis vs. Cafuir (L-3352,
June 12, 1950, 86 Phil. 554) are very much in point. This Court thus declared:
The word "entrusted" cannot convey the Idea of definite and permanent
renounciation of the mother's custody of her child.

xxx xxx xxx


This Court should avert the tragedy in the years to come of having deprived
mother and son of the beautiful associations and tender, imperishable
memories engendered by the relationship of parent and child. We should not
take away from a mother the opportunity of bringing up her own child even at
the cost of extreme sacrifice due to poverty and lack of means: so that
afterwards, she may be able to look back with pride and a sense of
satisfaction and her efforts, however humble, to make her dreams of her little
boy come true. We should not forget that the relationship between a foster
mother and a child is not natural but artificial. If the child turn out to be a
failure or forgetful of what its foster parents had done for him, said parents
might yet count and appraise all that they have done and spent for him and
with regret consider all of it as a dead loss, and even rue the day they
committed the blunder of taking the child into their hearts and their home. Not
so with a real natural mother who never counts, the cost and her sacrifices,
ever treasuring memories of her associations with her child, however
unpleasant and disappointing. Flesh and blood count.
xxx xxx xxx
Whether a child should stay permanently with a kindly stranger or with his
own mother, is not to be determined alone by considerations of affluence or
poverty, Poor youths who had to work their way thru school and college,
have, not infrequently, scaled the heights of success, as easily and swiftly as
their more favored companions, and done so with more, inner satisfaction,
and credit to themselves and their humble parents.
The guardianship or custody which parents exercise over -heir children is well-entrenched
in this jurisdiction. Thus, in the case of Reyes vs. Alvarez (8 Phil. 725), this Court declared:
The guardianship which parents exercise over their children by the virtue of
the paternal authority granted them by law has for its purpose their physical
development, the cultivation of their intelligence, and the development of their
intellectual and sensitive faculties. For such purposes they are entitled to
control their children and to keep them in their company in order to properly
comply with their paternal obligations, but it is also their duty to furnish them
with a dwelling or a place where they may live together.
This Court has long recognized that "the right attached to parental authority is a purely
personal one, and it is extinguished upon the death of the parent exercising it" (Abiera vs.
Orin, 8 Phil. 193),

Custody embraces the sum of parental rights with respect to the rearing of a child, including
his care. It includes the right to the child's services and earnings, and the right to direct his
activities and make decisions regarding his care and control, education, health, and religion
(p. 107, 59 Am. Jur. 2d.).
The right of the parents to the custody of their minor children is one of the natural rights
incident to parenthood a right supported by law and sound public policy. The right is an
inherent one, which is not created by the state or by the decision is of the courts, but
derives from the nature of parental relationship. Since the rights of parents to the custody of
their minor children is both a natural and a legal right, the law could not disturb the parentchild relationship except for the strongest reasons, and only upon a clear showing of a
parent's gross misconduct or unfitness, or of other extraordinary circumstances affecting the
welfare of the child (pp. 107 & 108, 59 Am. Jur. 2d.)
Article 363 orders that 'No mother shall be separated from her child under
seven years of age, unless the court finds compelling reasons for such
measure.' One of the cruelest acts in the world is to separate a mother from
her baby. This was often done in case of adultery by the mother, and the court
ordered that the custody of the child should be given to the father, but the
new article provides otherwise because the mother's maternal love-than
which there is nothing greater in this life-should be respected. Besides, she
could not exert a bad influence on a baby. And lastly, perhaps the presence of
her child will often redeem her (p. 199, The Father of the First Brown Race
Civil Code, Rivera, 1978 Ed.).
As long as the parents are living and they have not lost their parental authority, patria
potestas is limited to them. Other ascendants have no authority over the children, even if
the parents of the latter are minors (2 Manresa 13, cited in p. 661, Comments and
Jurisprudence on the Civil Code, Tolentino, Vol. 1, 1983 Ed.).
Parental authority is inalienable and every abdication of this authority by the parents is void
Planiol and Ripert 324, p. 664, Ibid.).
Whatever agreement or arrangement there was between petitioners and respondents when
the child Shirley was given to the former, the same has not been validated nor legalized by
the mere fact that the said girl had stayed with the petitioners for a number of years, in view
of the explicit provision of Article 313 mandating that parental authority cannot be
renounced or transferred, except in cases of guardianship or adoption approved by the
courts, or emancipation by concession.
Thus, the mother in case of separation, cannot by agreement vest the custody of a child in
the maternal grandmother as against the father (Mason vs. Williams, 165 Ky 331, 176 S.W.

1171, cited in p. 662, Comments and Jurisprudence on the Civil Code, Tolentino, Vol. 1,
1983 Ed.).
Some United States courts have consistently ruled that since children cannot be bought and
sold, and since the parent is subject to obligations which he cannot throw off by any act of
his own, agreements by which the parents, or one of them, transfer custody of a child to a
third person, with the provision or informal understanding that custody will not be reclaimed,
are not generally considered legally binding contracts, unless they amount to statutory
indentures of apprenticeship, or are supported by other express statutory provisions. This is
especially true in the case of a parent who, having been compelled by poverty or
unfavorable circumstances to surrender the custody of his child, wishes to reclaim it when
circumstances are improved (p. 117, 59 Am. Jur. 2d.)
For this Court to award custody over Shirley to petitioners primarily on the basis of her
reaction and choice would run counter to existing law and jurisprudence as already
aforestated.
A nine-year old girl, although already at the age of discernment, is not capable of knowing
or defining varied feelings like love, anger or cruelty when such a girl has been exposed to
two contrasting conditions, the first for more than eight years and he second, for barely four
months. The child grew up amidst affluent surroundings the grandparents being well-off.
The lolo and lola, as most lolos and lolas are, doted over Shirley. In fact, she attended
Maryknoll College, a school for the elite and rode in a chauffeur-driven car. She grew up
amidst a luxurious atmosphere. Perhaps, in their own way of loving their granddaughter,
they showered her with all material needs and pampered her. Thus, the child had not been
made to experience disappointments, much less hardships. Life with her lolo and lola meant
having what she wanted. In the process, Shirley moved about in a limited world, created by
her Mama (Lola) and Papa (Lolo) world felt and seen through rose-colored lenses. The child
addresses her natural parents as "Daddy" and "Mommy".
Then all of a sudden, the scenario is changed and the girl finds herself in a very contrasting
situation, Having been used to the life style offered by her grandparents and having thus
absorbed a set of values different from the average and ordinary, she now finds life with her
natural parents harsh and unbearable. With the luxurious life she had with petitioners at the
back of her mind, she would naturally look at things in the respondent's home differently and
partially.
Four months is too insufficient a time for a nine-year old girl to comprehend and accept a
home atmosphere striking distinct from one where she had lived for more than eight years.
Four months is a very short time for the child to be able to understand, to absorb and to
appreciate two vastly different home conditions. Whatever set of values the second home
has to offer, the same cannot settle in a child for only four months' exposure. To Shirley,
therefore, any attempted discipline imposed her natural parents means cruelty and lack of

affection for her. Where before she could choose the food she wanted, now she has to take
whatever food is available within the limited means of her parents. She cannot realize that
in a middle-class family, the choice of food is restricted by the amount appropriated therefor.
The gauge is what and how much food could benefit all the members of the household and
not just one member. Choice for particular needs becomes secondary to what the family
budget can afford for the entire family. This explains why Shirley had a dislike for the
conditions existing in respondents' house which did not cater to her tastes.
In her answers to the questions which are quite leading, one can clearly sense that Shirley,
who was used to having all the lavish care and attention from petitioners, reacted negatively
to her natural parents whose ways are so different from the former. It would take some more
time and exposure for Shirley to be able to really say that respondents do not love and care
for her. She would have been given more time in respondent's home to allow whatever
values such place can offer to settle in her mind. It was unfair for petitioners to push Shirley
into a choice a decision which a nine-year old girl could not have made intelligently
without undue pressure and played-up emotionalism.
It must be noted with concern that Article 312 of the Civil Code clearly defines the specific
and limited role of grandparents when it states that "grandparents shall be consulted by all
members of the family on all important family questions." This has been interpreted to mean
that as long as the parents are living, grandparents and other ascendants have no authority
over the children, even when the parents are minors. Grandparents, therefore, cannot
question the form of instruction or education chosen by the parents for the children. The
grandparents can only advise and counsel the children. But if the parents are dead or are
absent, then the grandparents shall exercise parental authority over the children (Article
354, p. 663, Comments and Jurisprudence on the Civil Code, Tolentino, 1983 Ed.).
Evidently, the present petition for custody of petitioners runs counter to the parental
preference rule. Under the so-called parental preference rule, a natural parent, father or
mother, as the case may be, who is of good character and a proper person to have the
custody of the child and is reasonably able to provide for such child, ordinarily is entitled to
the custody as against all persons. Accordingly, such parents are entitled to the custody of
their children as against foster or prospective adoptive parents: and such entitlement
applies also as against other, relatives of the child, including grandparents, or as against an
agency or institution (pp. 207 & 208, Vol. 67A C.J.S.).
It has been an established rule that the preference of a child is only one factor to be
considered, and it is not controlling, decisive, or determinative. Thus, notwithstanding the
preference, the court has a discretion to determine the question of custody, and it is not
error for the court to refuse to discuss the custody issue with the child, The rights of a
parent will not be disregarded in order to gratify the mere wishes of a child where a parent is
found to be a proper person to be entrusted with the custody of a child (pp. 231-232, Vol.
67A C.J.S.).

In view of the foregoing, and considering that herein respondents have not been shown to
be unfit or unsuitable or financially incapable of keeping and caring for Shirley, the latter's
custody should be awarded to said respondents.